Filed 3/23/23 P. v. Sanchez CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

IGNACIO HERNANDEZ SÁNCHEZ,

Defendant and Appellant.

B322568

(Fresno County Super.

Ct. No. F18902753)

APPEAL from a judgment of the Superior Court of Fresno

County. Arlan L. Harrell, Judge. Affirmed in part and remanded 

with directions.

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant 

Attorney General, Eric L. Christoffersen and Sally Espinoza, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

INTRODUCTION

Ignacio Hernandez Sánchez appeals from his judgment of 

conviction of one count of murder (Pen. Code,1 § 187, subd. (a)),

with a true finding on a firearm enhancement (§ 12022.53, subd. 

(d)) and admissions to certain prior conviction allegations (§§ 667, 

subds. (b)–(i), 1170.12, subds. (a)–(d)), 667.5, subds. (a), (b)). On 

appeal, Sánchez argues the trial court violated his constitutional 

rights to due process and a fair trial by instructing the jury with 

CALCRIM No. 315 regarding eyewitness identification testimony. 

He also asserts sentencing error on the grounds that the trial 

court did not consider whether to impose a lesser firearm 

enhancement under section 12022.53; his prior offenses no longer 

qualify for a prior prison term enhancement under section 667.5, 

subdivision (b); and the abstract of judgment does not accurately 

reflect his presentence custody credit. We conclude the use of 

CALCRIM No. 315 did not violate Sánchez’s constitutional rights,

but his sentencing error claims have merit. We accordingly

affirm the conviction and remand the matter for resentencing. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Evidence at Trial

Shortly before midnight on July 9, 2016, David Lemus, 

the victim in this case, was fatally shot outside the Jet Stop gas 

station and convenience store in Huron, California. Huron is a 

small town in Fresno County whose residents often know one 

another. Sánchez, whose nickname was “Giddy,” lived in Huron

and was known to local law enforcement. About an hour and a 

half before the shooting, Huron Police Sergeant Charles Rabaut 

1 Unless otherwise stated, all further statutory references 

are to the Penal Code.
3

observed Sánchez in an alleyway near the Jet Stop. Sánchez was 

wearing a red shirt, white shorts, and a white hat.

About 10 minutes before the shooting, Sukhminder Multani 

was working at the Chevron gas station and store across the 

street from the Jet Stop when two men entered the store arguing. 

Multani recognized one of the men as a regular customer. The 

other man, whom Multani did not know, wore a red shirt and a 

hat, and appeared to be the aggressor. Multani asked both men 

to leave, and they complied. After a few minutes, Multani saw a

physical altercation outside the store near a crowd of people that 

included the man in the red shirt. An unidentified man was hit

in the face and then fled in his vehicle. A short time later, 

Multani was inside the store when he heard a shooting from the 

direction of the Jet Stop.

A few minutes before the shooting, Roman Plasencia was 

outside the Jet Stop store smoking marijuana when his friend,

Lemus, arrived and parked his car by the gas pumps. Plasencia 

walked over to the car and stood by the front passenger window

while Lemus stayed in the driver’s seat. As Plasencia was 

talking to Lemus, he noticed a verbal altercation taking place 

nearby. Plasencia knew most of the residents of Huron and was 

familiar with both Sánchez and his younger brother. Plasencia 

observed one of the brothers arguing with the occupant of a van 

that had stopped by the gas pumps. That brother yelled the 

name “Huron Bulldogs” and lifted his shirt to show his tattoos. 

Plasencia began walking back toward the store as that same

person approached Lemus’s car and stopped on the passenger 

side where Plasencia had been standing. Moments later, 

Plasencia heard the sound of arguing and three gunshots. When 

Plasencia went back toward the car, he saw Lemus lying on the
4

ground. In an interview with the police a few days after the 

shooting, Plasencia identified photographs of both Sánchez and 

his younger brother. Plasencia stated that only one of them had 

been present at the Jet Stop that night, but he did not know

which one because they bore a close resemblance. While 

Plasencia initially thought it was the younger brother, he noted 

that the older brother’s girlfriend was also at the scene. 

Rosemary Bernal was standing outside the Jet Stop store 

at the time of the shooting. She was a longtime resident of 

Huron and knew both Sánchez and his girlfriend from the 

neighborhood. A few minutes before the shooting, Bernal saw 

Sánchez and two other men walking toward the Jet Stop from the 

direction of the Chevron station. She recalled that Sánchez was 

wearing red shorts, a white shirt, and a white hat. While Bernal 

was inside the store, Sánchez’s girlfriend walked in and asked

the owner if she could use the restroom. When the owner 

jokingly stated that she had to pay, the girlfriend responded to 

“put it on Giddy’s tab.” Bernal made a purchase and went

outside. As she was standing in front of the store, Bernal saw

Sánchez in an altercation with Lemus near the driver’s side of 

Lemus’s car. After punching Lemus once in the face, Sánchez

pulled a gun from his waistband, pointed it at Lemus, and fired

three shots. Sánchez and his companions then ran down the 

alley. Lemus tried to get back to his car, but instead fell to the 

ground. In a photographic lineup shown to her a few days later, 

Bernal identified Sánchez as the shooter. She also told the police 

that she was familiar with Sánchez’s younger brother, and that 

he was not present at the shooting. 

David Sease and his mother were inside the Jet Stop store 

when the shooting occurred. Sease knew Lemus through a 
5

mutual friend, but he was not familiar with Sánchez. As his 

mother stood in line to make a purchase, Sease heard yelling 

outside. Sease looked through the glass windows of the store 

and saw a group of men surrounding Lemus’s car. Sánchez and 

another man were standing on the driver’s side of the car and a 

third man was on the passenger side. Sease recalled that 

Sánchez was short and wearing a red shirt, a red hat, and white 

shorts. As Lemus sat in the driver’s seat, Sánchez reached in and 

punched him. Lemus then got out of the car. The man on the 

passenger side walked around and hit Lemus from behind. In 

response, Lemus approached Sánchez and punched him once in 

the face. After being momentarily stunned, Sánchez pulled

a small black object from his waistband. At that point, Sease 

ducked down and heard two gunshots. When Sease stood back 

up, he saw Sánchez and the other men running down the alley, 

and Lemus stumbling toward his car. Lemus then fell to the

ground. In a photographic lineup shown to him several weeks 

after the shooting, Sease identified Sánchez as the shooter.

Officers from the Huron Police Department responded to 

the scene minutes after the shooting. As Officer Daniel Garibay 

was driving to the scene, he observed Sánchez and his brother

walking in an alleyway a few blocks from the Jet Stop. Sánchez 

was wearing a red shirt, white shorts, and a white hat, and he 

appeared to be reaching his hand toward the front of his

waistband. 

Once at the Jet Stop, Officer Garibay stayed outside with

the wounded Lemus while Sergeant Rabaut went into the store to 

view surveillance footage of the shooting. While none of the

surveillance cameras captured the shooting, they did record a 

portion of the area near the gas pumps where Lemus’s car was
6

parked. In reviewing the video of that area, Sergeant Rabaut

recognized Sánchez as standing near the front passenger door 

and then walking around the front of the vehicle. When Officer 

Garibay later reviewed the video, he likewise recognized Sánchez. 

In the video, Sánchez was wearing the same red shirt, white 

shorts, and white hat that the officers had seen him in earlier 

that evening.

Lemus died of a gunshot wound to the front abdomen. A 

single bullet was recovered from his body. During a search of his

car, the police found a bullet fragment and an expended shell 

casing inside the vehicle. The trajectory of that bullet appeared 

to be from the front passenger window through the driver’s seat

headrest into the rear passenger door. Both the bullet that killed 

Lemus and the shell casing found in his car were from the same 

caliber firearm.

At the time of the shooting, Sánchez was on parole and 

wearing a global positioning system (GPS) device. His GPS 

device showed that Sánchez was at the Jet Stop gas station at 

11:58 that night. After the shooting, Sánchez spent the night in 

Bakersfield and then drove to Los Angeles. He returned to the 

Huron area a few days later. 

On July 12, 2016, homicide detectives from the Fresno 

County Sheriff’s Department conducted a custodial interview 

with Sánchez. Sánchez admitted to the detectives that

his nickname was “Giddy,” and that he was a member of the 

Huron Bulldogs gang. In describing his whereabouts on the 

night of the shooting, Sánchez stated that he was barhopping 

with his girlfriend and some other friends. They had been 

drinking at a bar across the street from the Chevron station. 

When he saw one of his friends running toward the Chevron, 
7

Sánchez followed because he suspected something might be 

happening there. Sánchez confronted a young man inside the 

Chevron store, but decided to leave him alone after the store 

clerk intervened. When Sánchez walked out, he saw that a large 

crowd had gathered outside the Chevron station around some 

people who were fighting, and he tried to act as a peacemaker 

in that fight. The crowd then began walking toward the Jet Stop. 

Sánchez initially followed the crowd, but changed his mind and 

walked in the opposite direction through an alley. Sánchez 

denied going to the Jet Stop, and stated that he was in the alley

when he heard the sound of gunfire. When the detectives showed 

Sánchez a still image of surveillance video taken from the Jet 

Stop that night, Sánchez admitted that the image was of him, but

he continued to deny any involvement in the shooting. 

II. Jury Verdict and Sentencing

The jury found Sánchez guilty of the second degree murder 

of Lemus. The jury also found true the enhancement allegation 

that Sánchez intentionally discharged a firearm which caused 

Lemus’s death within the meaning of section 12022.53, 

subdivision (d). In a bifurcated proceeding, Sánchez admitted the 

enhancement allegations that he suffered two prior strike 

convictions (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), served 

one prior prison term for a violent felony conviction (§ 667.5, 

subd. (a)), and served three prior prison terms for other

convictions (§ 667.5, subd. (b)). 

The trial court sentenced Sánchez to a total term of 

70 years to life in state prison, consisting of 45 years to life on 

the murder conviction, plus 25 years to life on the firearm 

enhancement (§ 12022.53, subd. (d)). The court exercised its 

discretion to strike each of the prior prison term enhancements
8

(§ 667.5, subds. (a), (b)) in the interest of justice pursuant to 

section 1385. Sánchez was awarded 1,207 days of presentence

custody credit. 

Sánchez filed a timely appeal. 

DISCUSSION

I. The Certainty Factor in CALCRIM No. 315

On appeal, Sánchez contends his constitutional rights to 

due process and a fair trial were violated when the trial court 

instructed the jury with CALCRIM No. 315 that an eyewitness’s 

level of certainty is one of the factors to consider in evaluating 

the reliability of eyewitness identification testimony. In 

challenging the inclusion of the certainty factor in CALCRIM 

No. 315, Sánchez argues that the growing body of evidence has 

shown no correlation between the confidence and the accuracy of

an eyewitness’s identification. Based on the totality of the record,

we conclude that Sánchez’s constitutional claim fails. 

A. Applicable Law

CALCRIM No. 315, as given by the trial court, lists 

15 factors for the jury to consider when evaluating eyewitness 

identification testimony. One of those factors states: “How 

certain was the witness when he or she made an identification?”

In People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), the 

California Supreme Court considered a due process challenge to

the certainty factor in CALCRIM No. 315. The defendant 

in Lemcke was convicted of assault and robbery based on the 

testimony of a single eyewitness who had no prior relationship 

with the defendant and expressed certainty in her identification 

of him as the perpetrator. (Id. at p. 666.) In rejecting the

defendant’s due process claim, the Supreme Court held that 

“[w]hen considered in the context of the trial record as a whole, 
9

listing the witness’s level of certainty as one of 15 factors the jury 

should consider when evaluating identification testimony did not 

render [the defendant’s] trial fundamentally unfair.” (Id. at 

p. 646.) As the court explained, CALCRIM No. 315 “does not 

direct the jury that ‘certainty equals accuracy.’ [Citations.] 

Although the language may prompt jurors to conclude that a 

confident identification is more likely to be accurate, [the 

defendant] was permitted to call an eyewitness identification 

expert who explained the limited circumstances when certainty 

and accuracy are positively correlated. Moreover, the [trial] court 

provided additional instructions directing the jury that it was 

required to consider the testimony of the expert witness, that 

the prosecution retained the burden to prove [the defendant’s]

identity as the perpetrator beyond a reasonable doubt, and that 

witnesses sometimes make honest mistakes.” (Lemcke, at 

p. 647.)

The Supreme Court acknowledged, however, that “a 

reevaluation of the certainty instruction is warranted.” (Lemcke, 

supra, 11 Cal.5th at p. 647.) The court noted that “[c]ontrary to

widespread lay belief, there is now near unanimity in the 

empirical research that ‘eyewitness confidence is generally an

unreliable indicator of accuracy.’ [Citations.] As currently 

worded, CALCRIM No. 315 does nothing to disabuse jurors of 

that common misconception, but rather tends to reinforce it by

implying that an identification is more likely to be reliable when

the witness has expressed certainty.” (Ibid.) The court 

accordingly referred the matter to the state Judicial Council to 

evaluate “whether or how the instruction might be modified to 

avoid juror confusion regarding the correlation between certainty 

and accuracy.” (Ibid.) The court further directed that “until the 
10

Judicial Council has completed its evaluation, trial courts should 

omit the certainty factor from CALCRIM No. 315 unless the 

defendant requests otherwise.” (Id. at p. 648.)

Following Lemcke, the Supreme Court in People v. Wright

(2021) 12 Cal.5th 419 (Wright) again considered a challenge to 

the certainty factor in an eyewitness identification instruction. 

The jury in Wright was instructed with the similarly worded 

CALJIC No. 2.92, which lists, among other factors to consider,

“ ‘[t]he extent to which the witness is either certain or uncertain 

of the identification.’ ” (Wright, at p. 452.) Applying Lemcke, the 

Supreme Court held that the inclusion of the certainty factor 

in CALJIC No. 2.92 did not violate the defendant’s due process 

rights. (Wright, at p. 453.) The court reasoned that, “[a]lthough 

the defense below did not present an eyewitness identification 

expert as had occurred in Lemcke, [the] defendant’s primary trial 

strategy was to discredit [the eyewitnesses], and to imply that 

the eyewitnesses were testifying falsely.” (Ibid.) The court also 

observed that, “[t]he instant case involved the identification of 

defendant by multiple witnesses, and, unlike in Lemcke, at least 

two of the witnesses had known [the] defendant in some capacity 

prior to the attack.” (Ibid.) 

B. The Trial Court’s Inclusion of the Certainty 

Factor in CALCRIM No. 315 Did Not Violate 

Sánchez’s Constitutional Rights 

Sánchez asserts the trial court’s inclusion of the certainty 

factor in CALCRIM No. 315 violated his constitutional rights to 

due process and a fair trial. As a preliminary matter, we address 

the People’s argument that Sánchez forfeited this claim by failing 

to object or request a modification of the instruction at trial. An 

appellate court may review any claim of instructional error that
11

affects a defendant’s substantial rights irrespective of whether 

there was an objection in the trial court. (§ 1259 [“appellate court

may also review any instruction given . . . even though no 

objection was made thereto in the lower court, if the substantial 

rights of the defendant were affected thereby”].) Whether the 

defendant’s substantial rights were affected, however, can only 

be determined by deciding if the instruction as given was flawed 

and, if so, whether the error was prejudicial. Therefore, we 

necessarily must review the merits of Sánchez’s claim that the 

instruction violated his constitutional rights. (People v. Mitchell

(2019) 7 Cal.5th 561, 580 [no forfeiture where defendant claimed 

that flawed instructions “deprived him of due process . . . because 

this would affect his substantial rights if true”].)2

Viewing CALCRIM No. 315 in the context of the jury 

instructions and record as a whole, we conclude the trial court’s 

inclusion of the certainty factor in the instruction given to the 

jury did not violate Sánchez’s constitutional rights. As in Wright, 

supra, 12 Cal.5th at page 453, this case involved the 

identification of Sánchez as the perpetrator by multiple 

witnesses, some of whom knew him prior to the shooting. At 

trial, two eyewitnesses, Bernal and Sease, made in-court 

identifications of Sánchez as the person who shot Lemus. Both 

Bernal and Sease also had identified Sánchez as the shooter in 

photographic lineups that were shown to them during their police

interviews. A third eyewitness, Plasencia, told the police that

2 Because we find no forfeiture of Sánchez’s instructional 

error claim, we do not reach his argument that his trial counsel’s 

failure to object the certainty factor in CALCRIM No. 315 

constituted ineffective assistance of counsel. 
12

either Sánchez or his similar-looking brother had been present 

at the scene and approached Lemus moments before the shooting. 

Both Plasencia and Bernal also testified that they were familiar 

with most residents in the small town of Huron, and that they 

knew Sánchez before the shooting because they would see him 

around town. In addition to these witnesses to the shooting, two 

local law enforcement officers testified that they knew Sánchez 

based on their prior contacts with him, and that they saw him

near the Jet Stop shortly before or after the shooting in the same 

color and type of clothing worn by the perpetrator. At trial, none 

of the witnesses were asked by either the prosecution or the 

defense to express a level of certainty in their identifications. 

Moreover, in proving Sánchez’s identity as the shooter, the 

prosecution relied heavily on other corroborating evidence that 

placed him at the scene. The jury was shown the surveillance 

video of the area near the Jet Stop gas pumps where Lemus’s car

had been parked. While the camera did not capture the shooting, 

it did show a person whom the prosecution contended was

Sánchez walking around Lemus’s car right before the shooting 

occurred. The jury also heard the audio recording of Sánchez’s 

police interview during which he repeatedly denied that he was 

at the Jet Stop that night, and then upon being shown a still

image taken from the surveillance video, he admitted that the 

image was of him. In addition, the jury was presented with 

evidence that Sánchez’s GPS tracking device placed him at the

exact location of the Jet Stop right around the time of the 

shooting.

In challenging the certainty factor in CALCRIM No. 315, 

Sánchez argues the instruction violates due process because it 

“lessens the prosecution’s burden of proof by allowing the jury to 
13

use improper factors unrelated to accurate identification,” and 

“has a negative effect on the defendant’s ability to present his 

defense to counter the eyewitness identifications.” These same 

arguments, however, were expressly rejected by the Supreme 

Court in Lemcke. In response to the claim that CALCRIM 

No. 315 lowered the prosecution’s burden of proof, the Lemcke

court explained that “the instruction merely lists the witness’s

level of certainty at the time of identification as one of 15 

different factors that the jury should consider,” and “leaves the

jury to decide whether the witness expressed a credible claim of 

certainty and what weight, if any, should be placed on that 

certainty in relation to the numerous other factors.” (Lemcke, 

supra, 11 Cal.5th at p. 657.) The Lemcke court likewise rejected 

the claim that the instruction denied the defendant a meaningful 

opportunity to present a defense because the record showed that 

he “was permitted to put on a vigorous defense on the issue of 

identity” through expert testimony and cross-examination on the

reliability of the eyewitness’s identification. (Id. at p. 660.)

Here, the record demonstrates that Sánchez was able to 

present a vigorous defense on the issue of identity by challenging 

the credibility of the various eyewitnesses on cross-examination

and eliciting inconsistencies in their testimony. Additionally, as

in Lemcke, supra, 11 Cal.5th at page 658 and Wright, supra, 

12 Cal.5th at page 453, the instructions as a whole properly 

explained to the jury how to evaluate the evidence presented. 

The trial court instructed the jury on the defendant’s 

presumption of innocence and the prosecution’s burden of proving

guilt beyond a reasonable doubt. The court also instructed the

jury with respect to witness testimony that “[p]eople sometimes 

honestly . . . make mistakes about what they remember,” and 
14

that the jurors “alone must judge the credibility or believability 

of the witnesses.” CALCRIM No. 315, as given to the jury, 

further reiterated the burden of proof with respect to identity, 

stating: “The People have the burden of proving beyond a 

reasonable doubt that it was the defendant who committed the 

crime. If the People have not met this burden, you must find the 

defendant not guilty.” 

On this record, the trial court’s inclusion of the certainty 

factor in the eyewitness identification instruction given to the 

jury did not render the trial fundamentally unfair or otherwise

violate Sánchez’s due process rights. 

II. Discretion to Impose Lesser Uncharged 

Enhancements Under Section 12022.53

Sánchez contends the matter must be remanded for 

resentencing because the trial court did not understand the scope 

of its discretion to strike the enhancement found true by the jury 

under section 12022.53, subdivision (d), and to impose a lesser 

enhancement under section 12022.53, subdivision (b) or (c). We 

agree that remand is appropriate following the Supreme Court’s 

decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado).

A. Applicable Law

Section 12022.53 establishes a tiered system of sentencing 

enhancements for certain felonies involving firearms. (Tirado, 

supra, 12 Cal.5th at p. 693.) Subdivision (b) of the statute

mandates the imposition of a 10-year enhancement for the 

personal use of a firearm in the commission of one of those 

felonies; subdivision (c) requires the imposition of a 20-year 

enhancement for the personal and intentional discharge of a

firearm; and subdivision (d) provides for a 25-year-to-life 

enhancement for the personal and intentional discharge of a 
15

firearm causing great bodily injury or death to a person other 

than an accomplice. (§ 12022.53, subds. (b)–(d).) 

Effective January 1, 2018, the Legislature amended section 

12022.53, subdivision (h), to give trial courts the discretion to 

strike or dismiss a firearm enhancement in the interest of justice. 

(Stats. 2017, ch. 682, § 2.) While section 12022.53, subdivision 

(h), as amended, authorized a court to strike a section 12022.53, 

subdivision (d) enhancement entirely and impose no additional 

punishment under the statute, the question remained whether 

the court could instead strike the section 12022.53, subdivision 

(d) enhancement and impose a lesser enhancement under section 

12022.53, subdivision (b) or (c), even if the lesser enhancement 

was not charged in the information or found true by the jury. 

During the pendency of this appeal, the Supreme Court 

issued its decision in Tirado, supra, 12 Cal.5th at page 696, 

which resolved a split that had developed among the Courts of 

Appeal as to the scope of the trial court’s discretion to impose a 

lesser, uncharged enhancement under section 12022.53. The 

court concluded that “the statutory framework permits a court 

to strike the section 12022.53(d) enhancement found true by the 

jury and to impose a lesser uncharged statutory enhancement 

instead.” (Tirado, at p. 692.) Thus, “[w]hen an accusatory 

pleading alleges and the jury finds true the facts supporting a 

section 12022.53(d) enhancement, and the court determines 

that the section 12022.53(d) enhancement should be struck or 

dismissed under section 12022.53(h), the court may . . . impose 

an enhancement under section 12022.53(b) or (c).” (Id. at p. 700.)
16

B. The Matter Must Be Remanded for the Trial 

Court to Consider Whether to Impose a Lesser 

Enhancement Under Section 12022.53

In this case, the People alleged, and the jury found true, 

the section 12022.53 subdivision (d) enhancement that Sánchez 

had personally and intentionally discharged a firearm which 

proximately caused Lemus’s death. At Sánchez’s November 1, 

2019 sentencing hearing, the trial court stated that it understood 

it had “newly granted discretion to strike or stay such an 

enhancement,” and that it was declining to strike the 

enhancement. However, in sentencing Sánchez to an additional 

25-year-to-life term under section 12022.53, subdivision (d), the

trial court did not state whether it had considered imposing a 

lesser enhancement under section 12022.53, subdivision (b) or (c).

The People assert that Sánchez forfeited his claim that the 

trial court failed to properly exercise its discretion under section 

12022.53 because he never objected to the firearm enhancement 

at sentencing. Generally, “ ‘[a] party in a criminal case may not, 

on appeal, raise “claims involving the trial court’s failure to

properly make or articulate its discretionary sentencing choices”

if the party did not object to the sentence at trial.’ ” (People v. 

Scott (2015) 61 Cal.4th 363, 406.) “ ‘In determining whether the 

significance of a change in the law excuses counsel’s failure to 

object at trial, we consider the “state of the law as it would have 

appeared to competent and knowledgeable counsel at the time of 

the trial.” ’ ” (People v. Perez (2020) 9 Cal.5th 1, 8.) In this case, 

at the time of Sánchez’s sentencing, the law was unsettled as to

whether a trial court had any discretion to strike a section 

12022.53, subdivision (d) enhancement and to impose a lesser, 

uncharged enhancement instead. (Compare People v. Morrison
17

(2019) 34 Cal.App.5th 217, 223 [finding discretion] with People 

v. Tirado (2019) 38 Cal.App.5th 637, 643 [finding no discretion], 

reversed by Tirado, supra, 12 Cal.5th 688.) Given the

uncertainty in the law at the time, we find no forfeiture in 

Sánchez’s failure to object to his sentence.3 

The People also argue that remand is not warranted 

because the record reflects that the trial court properly 

understood its discretion to impose a lesser enhancement and 

declined to exercise such discretion. “ ‘Defendants are entitled to

sentencing decisions made in the exercise of the “informed 

discretion” of the sentencing court.’ ” (People v. Gutierrez (2014) 

58 Cal.4th 1354, 1391.) When a court is unaware of the scope of 

its discretion, it cannot exercise that informed discretion. (Ibid.) 

“In such circumstances, . . . the appropriate remedy is to remand 

for resentencing unless the record ‘clearly indicate[s]’ that the 

trial court would have reached the same conclusion ‘even if it had

been aware that it had such discretion.’ ” (Ibid.) Here, the record 

does not clearly indicate that the trial court understood it had

discretion to impose a lesser, uncharged enhancement under 

section 12022.53, or that it would have declined to do so even if it

had been aware of the full scope of its discretion. Under these 

circumstances, remand is required for the trial court to determine 

whether to exercise its discretion to strike the section 12022.53, 

subdivision (d) enhancement and to impose a lesser enhancement 

under section 12022.53, subdivision (b) or (c). We express no 

3 Because we find that Sánchez did not forfeit his claim that 

the trial court failed to understand the scope of its discretion 

under section 12022.53, we need not address his argument that 

he received ineffective assistance of counsel based on his trial 

counsel’s failure to object to the sentence.
18

opinion on how the trial court should exercise its discretion on 

remand. 

III. The Section 667.5, Subdivision (b) Enhancements 

Must Be Stricken

Sánchez argues the three 1-year enhancements that the 

trial court found to be true under section 667.5, subdivision (b),

must be vacated because his prior convictions no longer qualify 

for a sentence enhancement under Senate Bill No. 136 (2019–

2020 Reg. Sess.) (Senate Bill 136). The People acknowledge that

Sánchez is entitled to the benefit of Senate Bill 136, but contend

that we should remand the case for resentencing rather than 

vacate or strike the enhancements. Because the matter is being 

remanded to the trial court to exercise its discretion under 

section 12022.53, we conclude the proper remedy is for the trial 

court to strike the section 667.5, subdivision (b) enhancements on 

remand.

At the time of Sánchez’s November 1, 2019 sentencing, 

section 667.5, subdivision (b) required trial courts to impose a

one-year sentence enhancement for each true finding on an 

allegation that the defendant had served a separate prior prison 

term and had not remained free of custody for at least five years. 

(§ 667.5, former subd. (b).) Trial courts nevertheless had the

discretion to strike a prior prison term enhancement pursuant to

section 1385, subdivision (a). (People v. Jennings (2019) 

42 Cal.App.5th 664, 681.) Effective January 1, 2020, Senate 

Bill 136 amended section 667.5, subdivision (b), to limit the 

applicability of the enhancement to defendants who served a 

prior prison term for a sexually violent offense, as defined in 

Welfare and Institutions Code section 6600, subdivision (b). 

(Stats. 2019, ch. 590, § 1.) As the People concede, Senate Bill 136 
19

applies retroactively to Sánchez because the judgment in his case 

is not final and none of his prior convictions was for a sexually 

violent offense. (People v. Choi (2021) 59 Cal.App.5th 753, 769; 

People v. Winn (2020) 44 Cal.App.5th 859, 872.)

While the parties agree that Sánchez is entitled to the 

benefit of Senate Bill 136, they dispute the proper remedy given 

that, at Sánchez’s sentencing, the trial court exercised its 

discretion to strike the prior prison term enhancements in the 

interest of justice pursuant to section 1385. Sánchez argues the

true findings on the section 667.5, subdivision (b) enhancements 

must be vacated because the trial court no longer has discretion 

to impose punishment for those enhancements. The People 

assert the case should be remanded to allow the trial court to 

reassess Sanchez’s total sentence in light of the change in the law 

effectuated by Senate Bill 136. Because Sánchez’s prior 

convictions are for offenses that no longer qualify for a sentence

enhancement under section 667.5, subdivision (b), the three 1-

year prior prison term enhancements are unauthorized by law 

and must be stricken. (People v. Morelos (2022) 13 Cal.5th 722, 

770; People v. Choi, supra, 59 Cal.App.5th at pp. 769–770.) 

Accordingly, in addition to any other changes that may be 

ordered on remand, the trial court is directed to strike each of the 

section 667.5, subdivision (b) enhancements. 

IV. Sánchez Is Entitled to an Additional Day of 

Presentence Custody Credit 

Lastly, Sánchez asserts, and the Attorney General agrees, 

the judgment must be modified to accurately reflect Sánchez’s 

presentence custody credit. Section 2900.5, subdivision (a), 

provides that a defendant is entitled to receive full credit for

actual confinement time prior to the commencement of the 
20

sentence. At his sentencing, Sánchez was awarded 1,207 days of

presentence custody credit. However, because Sánchez was 

taken into custody on July 12, 2016, and was sentenced on

November 1, 2019, he is entitled to one additional day of 

presentence custody credit for a total of 1,208 days. Therefore, on 

remand, the trial court is directed to modify the judgment to 

reflect an award of 1,208 days of presentence custody credit. 

DISPOSITION

The conviction is affirmed. The matter is remanded to the 

trial court with directions (1) to determine whether to exercise 

its discretion to strike the section 12022.53, subdivision (d) 

enhancement and impose a lesser enhancement under section 

12022.53, subdivision (b) or (c); (2) to strike each of the section 

667.5, subdivision (b) enhancements; and (3) to modify the 

judgment to reflect an award of 1,208 days of presentence 

custody credit.

VIRAMONTES, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.